The courts have concluded the 1931 trust that deeds Children’s Pool over from the state to the city of San Diego for use as a children’s wading pool has been violated. The city must now dredge sand from it to return it the condition it was in in 1941 when it was jointly used by humans and harbor seals.
Last week, the California Supreme Court refused to hear an appeal brought to it by the city of San Diego of a Court of Appeal, Fourth Appelate District’s September ruling that San Diego violated its trust status over La Jolla’s Children’s Pool by allowing it to be used for purposes other than as “a public park and children’s pool.”
Since Sept. 4, 1997, La Jolla’s Children’s Pool has been closed to human contact due to high bacteria coliform counts from accumulated seal waste caused by a burgeoning pool seal population. Since then, the pool has been a de facto seal rookery and haul-out. That reality led to the filing of the case of O’Sullivan vs. the city of San Diego, which alleged that the city breached its trust status of Children’s Pool by allowing the pool to be taken over by seals to the exclusion of people, especially children, for whom it was originally designed.
Council President Scott Peters, whose First District includes La Jolla, hailed the legal ruling as “the right thing to do,” noting the pool ought to be used for the purpose for which it was intended: as a safe children’s wading area.
“This has been a difficult issue for the community,” said Peters, “but it affirms what a lot of us have been saying, that this was intended for children to be able to swim. Now we need to turn toward finding a humane, cost-effective way to comply with this court order. We certainly hope to resolve that pretty soon.”
For plaintiff’s attorney Paul Kennerson, the state Supreme Court’s denial of the city’s appeal of the O’Sullivan case marked the end of a five-year legal struggle to determine legitimate uses for the pool. It was also a vindication of his legal position that the pool’s trust status should be narrowly, not broadly, construed.
“Everybody from the City Attorney to the City Council to the Parks and Rec Department to the mayor were all driven by some perception that children preferred to have seals at Children’s Pool, rather than have it as a place for children to go in the water,” said Kennerson. “The Children’s Pool is in trust: Nobody seemed to pay any attention to that. Nothing is more sacred. Everybody kept saying to me, ‘Well, the children want seals.’ My point is, that’s not a good basis for a policy decision, to determine what is right by what a child wants.
“Children want lollipops and they want not to go to school. But sometimes you have to tell them they can’t have lollipops and they have to go to school. In this case, the law is saying, ‘This is for children to use,’ and what you should learn is that you must obey the law, even if you don’t prefer that.”
Deputy City Attorney George Schaefer, who argued the city’s case in O’Sullivan, noted the state Supreme Court’s decision was not unexpected in that the court takes up fewer than 5 percent of the cases it is petitioned to hear. He added that the Supreme Court’s denial of the city’s appeal effectively seals the deal on the pool’s fate. “The only other possibility would be for the state Legislature to pass legislation to remove the city as trustee and have the state assume all obligation for managing that beach,” Schaefer said. “The Legislature could amend the statute that created the (pool) trust to explicitly provide that a marine mammal park could be established, if the city wanted to establish such a park.”
Melinda Merryweather, a longtime La Jollan who has actively supported returning Children’s Pool to shared use by humans and pinnipeds, was elated by the state Supreme Court’s decision to deny the city’s appeal. For Merryweather, carrying the fight to have Children’s Pool returned to use by children was all about honoring a promise that had been made previously to the community.
“This was always clear-cut to me from the beginning,” said Merryweather. “You’ve got a gift (the Children’s Pool) the city accepted and they have to honor it. It was their responsibility to maintain it and they never did. They let it be turned into something else (a seal rookery), and you can’t do that. Ellen Browning Scripps gave it (the pool) to San Diego on the condition that it be for fishing and swimming.”
Brian Pease, an attorney representing the Animal Protection & Rescue League, pointed out there are several significant environmental hurdles to be cleared before sand from Children’s Pool can be dredged. “There is a whole environmental impact review (the city) must go through,” Pease said. “They have to get a permit from the Army Corps of Engineers which, historically, is very protective. There are a lot of problems that have to be looked into. Dredging all that sand from that beach could contribute to coastal erosion of other nearby beaches and cliffs. The city is being asked to maintain an artificial configuration of beach and will have to continually remove sand, year after year, that is going to build up. It’s not likely to go forward: It’s so unfeasible.”